Justice of compensation for spatial flood risk management – comparing the flexible Austrian and the structured Dutch approach

Abstract

In view of the anticipated climate change, many countries face increasing risks of flooding. Since the end of the 20^th century, the traditional hard flood protection measures have been increasingly complemented with spatial flood risk reduction measures. These measures, though in the public interest and as such, benefitting many people, almost inevitably affect landowners adversely. In other words, spatial flood risk reduction measures affect private land. The impact may extend from mere decreases in property values as a result of changes to zoning plans and to obligations to tolerate certain acts related to the construction or maintenance of water defence structures. Most of the time, implementation of spatial flood risk reduction measures thus discriminates between landowners, as some profit from better protection but others are affected negatively by the measures. Spatial flood risk reduction measures thus raise issues of social justice. Compensation plays a crucial role in flood risk management to mitigate the impact on land. How and in which cases this compensation is paid differs from country to country. Some national jurisdictions compensate for loss as a result of lawful administrative acts if and to the extent that it is considered unreasonable for this loss to be the full responsibility of the affected party. In this paper, we compare two different legal compensation frameworks in two European countries: Austria and the Netherlands. Based on a comparative analysis, we discuss how these different compensation schemes affect social justice, both in terms of substantive distributions but also in terms of procedural justice.